Estate Planning For Second Marriages

Most people who have estate planning documents in place before getting married for a second time will wish to update their estate plans in light of this major life event. Individuals who married and divorced while relatively young, on the other hand, may wish to take advantage of the occasion afforded by remarrying to sit down with an estate planning attorney in their area and begin the process of developing a comprehensive estate plan for the first time. Many of the decisions to be considered in estate planning for second marriages will depend in part on whether you have children from your previous marriage, and the terms on which you stand with those children and your former spouse. Each marriage, each family, and each individual will all bring a unique set of circumstances to the table, so it can be a good idea to discuss a range of options with an attorney who has extensive experience in estate planning and can offer suggestions based on your particular situation.

Estate Planning Considerations for Those Entering a Second Marriage

The foremost considerations for individuals entering into their second marriages will depend to some extent on how their first marriage ended, whether they share any children with their former spouse, and the tenor of the relationships they currently maintain with those children and with their ex. Individuals who left their previous marriage with strong feelings of resentment, or who remain dissatisfied with the distribution of marital property or spousal support arrangements established in their divorce decrees, often wish to make sure that their former spouse cannot benefit from their estate – either directly, by an out-of-date beneficiary designation or Last Will and Testament, or indirectly, via the former couple's shared children and their inheritance. In some cases, particularly in situations involving parental alienation, people embarking on their second marriage may even wish to draw such a sharp line under the past that even the children they share with their former spouse are not eligible to inherit from their estate. On the other hand, a person who left their first marriage on amicable terms may wish to leave their former spouse some form of bequest, whether or not the two had children together, and even if both of the divorced partners have since married other people.

Fortunately, an experienced estate planning lawyer will likely be familiar with a wide range of circumstances that can affect estate planning for second marriages, and in many cases will be able to recommend a combination of estate planning tools to address individual concerns. While an up-to-date Will is an estate planning must for almost any adult, the terms written in the Will can help to clarify how children of previous marriages should be handled, and establish whether a former spouse should inherit any portion of the estate. More complex matters can be handled via trusts, transfer-on-death accounts with updated beneficiary designations, and a variety of other highly adaptable estate planning tools.

How Do I Protect My Assets in a Second Marriage?

People who suffered significant financial losses during an earlier divorce are often understandably concerned with devising a plan to protect their assets in a second marriage. The best way to proceed here depends in part on the assets in question, in part on the potential beneficiaries to be protected in an estate plan, and in part on the foreseeable outcomes the planner finds most likely and most troubling.

"Liquid" assets such as financial accounts may require different methods of protection than physical assets such as real property, or intangible assets such as trademarks, copyrights, and the like. "Protection" for assets may mean different things to different people, depending on whether they are primarily concerned with securing those assets against creditors, or the division of property in a potential second divorce, vs. ensuring that those assets will be distributed to the intended beneficiaries after the owner's death. For peace of mind across a wide range of foreseeable eventualities, estate planners can consider combining a marital agreement that specifies how shared property will be divided in the event of divorce with a suite of estate planning documents that delineate carefully detailed instructions for the distribution of their assets to beneficiaries, including any children from their former marriage as well as those they may have with their current partner.

Identifying Gaps in Your Estate Plan

A good first step in estate planning for second marriages is to identify any gaps in your existing estate plan. These gaps could be areas in which no plan has ever been established – for instance, if you have never written a Last Will and Testament, or never purchased a life insurance policy. In some cases, however, the gaps will occur in the places where a former spouse is automatically removed by law. Many states, including Arizona, include provisions in their probate laws that automatically revoke a divorced spouse's claim on a decedent's estate.

If you want to leave your former spouse a bequest, you may wish to consult with an estate planning attorney to determine the best instrument by which to ensure that they are able to receive any assets you hope to leave them. Similarly, individuals who are concerned to make absolutely certain that their ex-partner receives nothing from the estate may find it helpful to sit down with a seasoned probate lawyer and review all estate planning documents and any beneficiary designations to ensure that no ambiguities are left that might entitle the former husband or wife to a portion of the estate.

Can My Ex-Wife Inherit From My Will?

One question probate lawyers often hear from clients in estate planning for second marriages is whether the client's ex will have a legal right to inherit from their estate, particularly via the Will. Perhaps due to the fact that, until relatively recently, men were presumed to be the "breadwinners" in their families, a quick review of internet searches will show that the question is more often asked about ex-wives than it is about ex-husbands – but times are certainly changing, and the answer is the same in either case.

Arizona Definition of Surviving Spouse for Probate

In Arizona, the answer for former partners who have received a decree of dissolution of marriage as the result of divorce proceedings in the state, the answer is usually, "Not unless you add them back." § 14-2802 Ariz. Rev. Stat. specifically excludes divorced former partners from the definition of a "surviving spouse" for the purpose of probate proceedings , and in general Arizona probate law proceeds on the assumption that a spouse from whom a decedent is divorced at the time of death is not entitled to a share in the estate unless specifically provided for, by the decedent, in estate planning documents signed after the issuance of the divorce decree.

Spousal Inheritance When You Are Separated but Not Divorced

Importantly, however, spouses who are separated but who have not yet completed the proceedings for a dissolution of marriage ending in a divorce decree will still be considered each other's "survivors" for the purposes of Arizona probate law. Partners who have separated but who anticipate a protracted divorce, or who have particular reason (such as a diagnosis of life-threatening illness) to be concerned that they may pass away before the divorce can be finalized, may wish to update their estate plans sooner, rather than later, as a precaution.

Spousal Inheritance in a Second Marriage

Generally speaking, if an Arizona decedent's Will is validated by the probate court in their jurisdiction, then the estate's probate process will follow the terms of the Will, subject to the claims of any creditors. Establishing a clear and legally valid Will is therefore a paramount consideration in ensuring that your wishes for the distribution of assets will be followed after your death.

If an Arizona resident dies without leaving a valid Will, also known as dying intestate, their estate will be probated according to the state's intestacy laws. Under these laws, particularly § 14-2102 Ariz. Rev. Stat ., the share of a decedent's estate to which a surviving spouse of an individual who has died intestate is entitled is determined not by how many times the decedent was married (number of former spouses), but by the number of children from prior marriages the decedent leaves behind:

●?????? If a decedent is survived by both a spouse and children, but all their surviving children are also the children of the surviving spouse, then the surviving spouse inherits the estate in its entirety.

●?????? If, on the other hand, a decedent is survived by both a spouse and children, but some of the surviving children are from a marriage other than with the surviving spouse, then all of the couple's shared property (also known as "community" property) and one-half of any "separate" property (property belonging exclusively to the decedent, not shared by the couple) goes to the surviving spouse, with the remainder of the estate to be distributed among the children of the previous marriage(s).

●?????? If an individual who dies intestate also dies "without issue" (leaving behind no children), but is survived by their spouse, then the spouse to whom the decedent is legally married at the time of death inherits the entire probate estate, regardless of any prior marriages.

Contact an Arizona Estate Planning Lawyer for Assistance With Estate Planning for Second Marriages

?Getting remarried after a divorce can be a good time to update your estate plan. In addition to essential steps like updating your Last Will and Testament and reviewing any beneficiary designations on accounts, you may also wish to consider incorporating some combination of trusts, pay-on-death accounts, or other estate planning tools to ensure that all children of present and prior marriages are cared for and that your assets are distributed after your death in accordance with your wishes.

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